Palo Alto Board of Education members and their attorneys have discussed in closed session and in emails how they might challenge the legal authority of the federal Department of Education to impose on the district new policies on bullying and other issues and possibly even to conduct investigations, the Weekly has learned.
The possible strategy, a far cry from the cooperative and collegial relationship described by district officials and their attorneys in public session, was revealed in emails written by school board Vice President Barbara Mitchell and school district attorney Chad Graff of the Oakland law firm of Fagen Freidman and Fulfrost dated June 7 and June 10.
Mitchell's email, directed to board President Dana Tom, Superintendent Kevin Skelly and the attorneys representing the district, expresses her view that the U.S. Department of Education's Office for Civil Rights (OCR) is "strong arming policy 'agreements' at the school district" and asked questions about what legal means the district might have to counter it.
"Your perspectives on this information would be valuable as we plan next steps," Mitchell wrote. "Please share responses with all board members in ways you see fit."
She asked what could be done to protect the district from "expansive federal requests for information or investigations, and/or protections from subsequently discovered 'violations' unrelated to the complaint, or when there is no complaint at all?" (The timing of Mitchell's email coincides with the notification by the Office for Civil Rights that it was launching a compliance review of the district's policies and procedures on sexual harassment and discrimination, which was initiated without a complaint. See related story.)
Her email also reveals that the district has made its own Freedom of Information Act request to the Office for Civil Rights for all the evidence compiled, including the agency's written records of interviews in all the civil-rights investigations it has conducted in the district.
Mitchell's email was forwarded on June 10 by Skelly to other board members, with her name removed, along with an email from Graff, indicating they were "in preparation for our discussion tomorrow" (June 11) in a closed meeting of the board.
Graff's email said he would review Mitchell's questions and "bring them into Tuesday's discussion of the District's steps to question OCR actions that are not legally directed and to obtain oversight of OCR actions that are overstepping their authority." He also indicated his law firm had been "pressing OCR for concrete identification of the legal issues that are the bases for their investigations."
The emails, which were posted on the district's website June 26 along with dozens of others among attorneys, board members and staff at the school district, were labeled "Privileged & Confidential Attorney Client Correspondence" and were intended to be redacted from public view, according to both Mitchell and Skelly, who learned they were visible when the Weekly sought their comments on Tuesday.
Mitchell and Skelly both responded by email stating that the emails were "inadvertently" posted on the district's website and requested that the Weekly "refrain from reviewing and/or using these communications for any reason" and delete or destroy any copies. By late Tuesday afternoon, copies had been removed from the district's website.
Mitchell, Tom, Skelly and a spokesperson for the Office for Civil Rights in Washington, D.C., all declined to comment on the contents of the emails or the district's strategies.
It is unclear whether a board majority has authorized the district's lawyers to research ways the district might challenge the authority of the Department of Education, what legal actions were under consideration and what decisions, if any, were reached by the board.
Board members Melissa Baten Caswell and Heidi Emberling both told the Weekly they support cooperating with the Office for Civil Rights and working with it to improve district practices. They would not discuss the June 11 closed session nor speak for the board as a whole. Camille Townsend was unavailable for comment.
In an email to the Weekly, Tom stated that the board's June 11 closed meeting was proper.
"The board's closed session discussion on June 11 of two cases with significant exposure to litigation was properly agendized, and the board's conference with legal counsel was in complete compliance with the agenda item," Tom wrote.
The posted agenda for that closed session stated the board would discuss two cases of "anticipated litigation" that involved facts and circumstances that the district believed were not known to the potential plaintiffs, one of the allowable reasons for a closed session.
Jim Ewert, general counsel of the California Newspaper Publishers Association, speculated that this stated exception could be based on reasoning that if the district were to decide to renege on one of its resolution agreements with the Office for Civil Rights or refused to cooperate with current investigations it could expose itself to legal action by the federal government.
Since the district voluntarily entered into a settlement agreement that committed it to developing and submitting discriminatory harassment policies for Office for Civil Rights approval, it would appear the district's primary option would be to stop complying with the agreement and essentially force the government to either back down or cut off the approximately $5.3 million in federal funds received by the district each year.
Another possibility is that the district is considering not cooperating with a new federal investigation into how Palo Alto High School has complied with laws dealing with peer sexual harassment and assault.
Terry Francke, general counsel of Californians Aware, a citizens' public-access advocacy group, questioned the appropriateness of the closed-session discussion.
"What I think makes the case for hush-hush discussion particularly weak is that this is a controversy purely of law. ... There are no surprise witnesses, experts or evidence to be kept under wraps. And the district's legal theory is precisely what it will lead with, possibly even fully articulating it in a letter to (OCR) announcing its intention to withdraw (from a resolution agreement) if things get that far," Francke said.
Former school board candidate Ken Dauber, co-founder of the parent group We Can Do Better Palo Alto and a regular advocate of more transparency in the operations of the school district, said he found the emails "very distressing."
"The reason that We Can Do Better Palo Alto has been calling for full, prompt, transparent and public discussion of this issue is precisely in order to avoid this kind of inappropriate behind-closed-doors discussion. It now appears that the board is telling the public that it is cooperating with OCR, while at the same time planning in closed sessions to evade federal civil-rights law. The board and district leadership should instead be focusing their attention on ensuring that all of our children receive the fair and equal treatment that they are entitled to," Dauber said in a statement.
In her email, Mitchell suggested that the federal agency didn't currently have the legal authority to mandate district policies on discriminatory harassment because there are two pending bills in Congress that would create that authority with little chance of passage.
"If the prospect of these bills passing is as slim as speculated here, it could explain the interest OCR has in strong arming policy 'agreements' at the school district and state level. It also provides a highly legitimate reason for school districts to avoid acting on policy language before Congress does," Mitchell wrote.
A review of the two bills Mitchell referenced, however, shows that they are unrelated to the legislative authority under which Office for Civil Rights operates. They would enact requirements for bullying policies and grievance procedures to protect all students. Under current federal law, the agency's jurisdiction is limited to allegations of discriminatory harassment based on gender, race, national origin, disability and other so-called "protected" classes. The Palo Alto district's dealings with the Office for Civil Rights have all revolved around cases of discriminatory bullying and harassment.